CHRISTOPHER DESIMONE v. RYAN TARASUIK & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1297

CHRISTOPHER DESIMONE

vs.

RYAN TARASUIK & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Ryan Tarasuik and Joanne Benard (tenants) appeal from a

judgment of summary process entered on a jury verdict for

Christopher DeSimone (landlord), awarding him possession of the

tenants' rental unit and more than $40,000 in damages, interest,

and costs. The tenants claim that they were improperly barred

from asserting any counterclaims and defenses, and that the

landlord failed to prove that they received a legally effective

notice to quit. Because we agree that the tenants should have

been allowed to raise at least the defense of retaliation, as

1Joanne Benard. In several filings, Joanne Benard's name
is spelled "Joann Bernard." As is our custom, we spell the
tenant's name as it was spelled in the complaint.
well as counterclaims responsive to the landlord's request for

back rent, we reverse.2

Background. The tenants and landlord entered into a

residential lease agreement for an apartment in Lynn on March

18, 2020. In February 2021, the landlord confronted the tenants

about keeping a dog at the apartment in violation of the lease

agreement. One of the tenants apologized and told the landlord

that the dog would return to his parents' house. Two months

later, the tenants and landlord agreed to a one-year lease

extension. The landlord followed up with the tenants in June

2021, claiming that other tenants were complaining about the dog

barking. Later that year, the tenants sought injunctive relief

against the landlord for failing to enforce the no-smoking

restriction and failing to ensure their right to quiet enjoyment

of the premises, and on November 22, 2021, a judge in the

Housing Court issued an order requiring the landlord to, among

other things, remind residents that smoking is not permitted on

the premises and that animals were not allowed on the premises

without approval. The same day that order was entered, the

landlord sent the tenants a notice of a lease violation stating

that they had unauthorized pets on the premises.

2 We acknowledge the amici brief submitted by Springfield No
One Leaves and the Massachusetts Fair Housing Center. The
plaintiff elected to not file a brief.

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The tenants did not pay rent for December 2021. On January

3, 2022, he served a notice to quit, citing nonpayment of two

months' rent. The landlord served another notice to quit on

February 3, 2022, citing nonpayment of rent and a "[p]et

[v]iolation." On March 21, 2022, the landlord filed a summary

process action against the tenants, seeking eviction and four

months' rent. The tenants answered, asserting counterclaims and

defenses including retaliation, discrimination, failure to

provide reasonable accommodation based on disability, breach of

the implied warranty of habitability, breach of quiet enjoyment,

and failure to properly terminate their tenancy.

On October 11, 2022, the tenants moved to dismiss the

summary process action, claiming that they never received any of

the notices to quit and that they reserved "their right to

withhold rent on the basis [of] multiple sanitary and health

violations." The motion judge denied the tenants' motion.

Prior to trial in April 2023, the landlord moved to dismiss the

tenants' counterclaims.

At the start of trial, the trial judge stated that although

"this case was cataloged as a nonpayment of rent case," he

considered it to be "a cause case." The landlord's counsel

informed the judge that nonpayment of rent was "what we're going

for," but the judge stated that the "January 3, 2022 notice to

quit for nonpayment of rent" was "superseded" by the February 3,

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2022 notice, which "seems to be for cause. Pet violation, it

says." The judge ruled that the landlord could seek nonpayment

of rent as damages. He also ruled that because "the termination

was for cause," the tenants could not present counterclaims,

stating that G. L. c. 239, § 8A, "compels me to rule that." In

response to the trial judge's rulings, the tenants argued that

they had a retaliation claim against the landlord as well as

other counterclaims and affirmative defenses, but the judge

ruled that only defenses "against the so-called pet violation

and any amounts that are owed for rent" were allowed and that

"any conditions [of the apartment] really doesn't come into this

case."

During the trial, the judge precluded the tenants from

referring to or presenting evidence on the apartment's

conditions and the issue of retaliation. The landlord testified

that the tenants had not paid rent for almost eighteen months,

which caused him and his family "significant hardship." One of

the tenants testified that even though they "didn't have the

funds to pay" the rent in March 2022, they attempted to pay

using RAFT rental assistance funds, but the landlord rejected

it. The jury returned a verdict for the landlord, awarding him

$35,700 in damages and possession of the apartment.

Discussion. 1. The tenants' counterclaims and affirmative

defenses. The tenants argue that the trial judge erred in

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prohibiting the tenants from raising any defenses or

counterclaims at trial. We agree.

It is not clear from the record why the judge decided to

treat the case as solely a fault case. The bases for an

eviction action are those "provided in the notice to quit."

Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass.

830, 852 (2019). The landlord's January 2022 notice to quit

cited nonpayment of rent as the only reason for eviction, while

the February 2022 notice cited both nonpayment of rent and the

pet violation. The parties intended to try the case as one for

nonpayment of rent; as the landlord's counsel explained at the

start of trial, "nonpayment is . . . what we're going for." The

judge then ruled that even though "the cause is a pet

violation," the jury could still award nonpayment of rent and

"other damages" if the landlord proved the violation. The

landlord testified about the tenants' nonpayment of rent and the

hardship it caused him and his family, and in closing his

counsel argued that the landlord had lost "a heck of a lot of

money, over [thirty] grand, . . . close to [forty]." The jury

awarded the landlord $35,700, an amount commensurate to the

landlord's claim for unpaid rent.

Contrary to the judge's explanation, G. L. c. 239, § 8A,

does not prohibit the tenants from raising counterclaims or

defenses at trial. The statute authorizes a tenant to raise a

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defense to possession, along with certain counterclaims relating

to the tenancy, when the landlord brings a summary process

action "pursuant to a notice to quit for nonpayment of rent, or

where the tenancy has been terminated without fault of the

tenant." G. L. c. 239, § 8A. Although § 8A does not apply when

an eviction is based solely on the fault of the tenant, see

Spence v. O'Brien, 15 Mass. App. Ct. 489, 499 (1983), the record

establishes that the landlord brought this action pursuant to a

notice to quit for, among other reasons, nonpayment of rent.

Accordingly, the judge should have allowed the tenants to raise,

at a minimum, counterclaims aimed at offsetting the rent sought

by the landlord. See Davis v. Comerford, 483 Mass. 164, 173

(2019); Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 202-203

(1973).

Furthermore, even if the landlord had sought eviction

solely based on alleged fault of the tenant, nothing in G. L.

c. 239, § 8A, prohibits a tenant from asserting other applicable

statutory or common-law defenses. As the Supreme Judicial Court

has explained, § 8A "is not the exclusive authority for defenses

and counterclaims in summary process." Bank of Am., N.A. v.

Rosa, 466 Mass. 613, 621 (2013). See Youghal, LLC v. Entwistle,

484 Mass. 1019, 1023-1024 (2020) (retaliation defense allowed

regardless of basis for eviction); City Wide Assocs. v.

Penfield, 409 Mass. 140, 143 (1991) (tenant allowed to raise

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reasonable accommodation defense in fault-based eviction).

Here, the tenants asserted in their answer certain defenses and

counterclaims that were available irrespective of § 8A. For

example, the tenants asserted a retaliation defense pursuant to

G. L. c. 239, § 2A, based on the fact that the landlord issued a

notice of a lease violation on the same date they obtained an

injunction requiring him to enforce the building's no-smoking

restriction and restriction on pets.3 In the circumstances, it

was error for the judge to rule that "the defense of retaliation

isn't available" because of § 8A.

2. The February 2022 notice to quit. The tenants also

contend that the judge erred in relying on the February 3, 2022

notice to quit as the operative notice for the landlord's

summary process action.4 We agree. A landlord may not file a

3 "It shall be a defense to an action for summary process
that such action or the preceding action of terminating the
tenant's tenancy, was taken against the tenant for the tenant's
act of commencing, proceeding with, or obtaining relief in any
judicial or administrative action the purpose of which action
was to obtain damages under or otherwise enforce, any federal,
state or local law, regulation, by-law or ordinance, which has
as its objective the regulation of residential premises . . . .
The commencement of such action against a tenant, or the sending
of a notice to quit upon which the summary process action is
based . . . within six months after the tenant has commenced,
proceeded with or obtained relief in such action . . . shall
create a rebuttable presumption that such summary process action
is a reprisal against the tenant for engaging in such
activities. . . ." G. L. c. 239, § 2A.

4 The tenants raise other concerns regarding the February
notice to quit, including claims that the tenants never received

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summary process complaint before the termination date outlined

in the notice to quit. Youghal, 484 Mass. at 1022. As stated

in the February notice, the landlord could not begin a summary

process action against the tenant until "the end of the next

rental period beginning after [the tenants'] receipt of this

notice." The notice stated that the landlord served it on

February 3, 2022. The next rental period started on March 1,

2022. Accordingly, the landlord could not bring a summary

process action against the tenants based on the February notice

until April 1, 2022, at the earliest, the day after the end of

the March rental period. Because the landlord filed the summary

process action prematurely, on March 21, 2022, it was error to

the notice and that the landlord did not serve an "unambiguous,
legally effective" notice. Because we find that the judge erred
in relying on the February notice to quit due to the landlord's
premature filing of the summary process action, we need not
address these claims. We note, however, that a landlord's
termination notice must be unequivocal, see Maguire v. Haddad,
325 Mass. 590, 593 (1950), and that multiple notices with
different termination dates are not unequivocal and may warrant
dismissal of a summary process action.

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rely on the February notice as the basis for the summary process

action.

Judgment reversed.

By the Court (Neyman, Singh &
Toone, JJ.5),

Clerk

Entered: January 17, 2025.

5 The panelists are listed in order of seniority.

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